The military trial of five suspected conspirators in the September 11th attacks was put on hold yet again over allegations that the FBI improperly sought to gather information on the defense team, the latest setback in a courtroom drama that has lasted years beyond what it would in a civilian setting.
The Miami Herald first reported this week that defense attorneys for Khalid Sheik Mohammed (KSM) and his co-conspirators alleged in court documents that a security officer assigned to their team had been secretly contacted by the FBI. This officer was made to sign a non-disclosure agreement before passing along information related to an investigation into how KSM’s writings made their way into the press this January. Guantanamo Bay’s Judge James Pohl, the army colonel overseeing the military tribunals, put the scheduled hearings for Tuesday and Wednesday on pause while an investigation into the FBI’s actions could be undertaken.
Given the fact that the military tribunal system put into place in Guantanamo has no precedent, it’s been easy for such delays to occur as the overseers of the U.S. base attempt to put together the rules for the hearings on the fly. The result has been instances such as this week’s where protections that have long been put in place in federal courts related to the rights of defendants and their legal counsel are not fully functional in the tribunal setting. “It’s hard, if not impossible, to imagine a federal court judge, allowing such a violation to occur in a federal court prosecution,” Karen Greenberg, the director of Fordham University Law School’s Center on National Security, told the Guardian.
The trial for KSM has so far been more than seven years in the making; the alleged mastermind of 9/11 has been imprisoned in Guantanamo since 2006. The charges of war crimes that have been levied against him and the other alleged plotters of the 2001 attack on the World Trade Center and Pentagon have been in place since 2008. Attorney General Eric Holder attempted to transfer the case against the plotters to a civilian court in New York in 2009, arguing, “Based on all of my experience and based on all of the recommendations and the great work and the research that has been done, I am quite confident that the outcomes in these cases will be successful.” The resulting outcry from conservatives quickly nixed that idea, leading to the situation as it currently stands.
In contrast, federal courts have proven themselves far more effective at gaining convictions of suspected terrorists — all while utilizing established norms when it comes to the treatment of prisoners and equitable defense. Last March, Sulaiman Abu Ghaith — son-in-law of Osama bin Laden — was captured in Jordan and brought to the United States for trial, rather than being sent to Guantanamo. Despite the pushback from Republicans and insistence that Ghaith needs to be sent to the military base, the trial proceeded without a hitch. The Southern District Court of New York convicted Ghaith on charges of conspiring to commit terrorism last month — only a year after the trial began.
“While Abu Ghaith went to trial within a year in a U.S. federal court that has clear laws and international credibility, the legal proceedings at Guantanamo are dragging on for years as the lawyers argue over what rules apply and the judge struggles to determine the relevant laws without any legal precedent to guide him,” Human Rights First’s Daphne Eviatar said in a statement last month. “In comparison to the civilian courts, the military commissions are a fiasco and a national embarrassment.”
Eviatar isn’t alone in her assessment. “More than four years after the plan to prosecute Khalid Sheik Mohammed in a New York federal court was abandoned, the United States has wasted hundreds of millions of dollars on the fiasco that is Guantanamo military commissions but are still no closer to a conviction,” Center for American Progress expert Ken Gude told ThinkProgress. Gude also pointed to the Ghaith trail as an example of how ineffective the military courts are in comparison to the civilian system. “Those politicians who campaigned to move the KSM trial should have to answer to the American people for wasting so much of their tax dollars on the farce,” Gude continued.
So far the trials at Guantanamo have since their inception obtained only a handful of convictions related to terrorism, a statistic that civilian courts continue to exceed. In 2008, the military tribunals had only concluded three cases — in the same time period, according to Human Rights Watch, civilian courts had landed 145 convictions in 107 cases. Civilian courtrooms’ processes have also proven far more effective at gaining usable information from suspected terrorists than Guantanamo has.
In a 2010 report, the Center for American Progress found that concerns from conservatives that civilian courts are more lenient on terrorists or allow valuable intelligence to slip through the cracks because of attorney-client privilege are in fact backwards. In actuality, interrogations with terrorists who have attorneys have produced “an intelligence goldmine” and sentences from civilian courts have been harsher than the military’s. Also, more than 200 international terrorists are currently serving out sentences in super-maximum security facilities in the United States, and — counter to GOP theories about the consequences of transferring detainees to the mainland — no convicted terrorist has escaped or attacked a prison in the U.S.